Monday, April 24, 2006

CREATIVE COMMONS IN SL: THE CONDUCER OF MIA WOMBAT

As promised last week, here's the lightly edited transcript of last week's lecture by Mia Wombat of Creative Commons (real life info here), and the lively conversation that followed with an audience of 70+ Residents. Her talk, "Age of the Conducer", is a fascinating weave of the law and culture behind the current Intellectual Property rights debate around the globe, especially as it relates to video games and virtual worlds, particularly Second Life. Into this, she introduces the "Conducer", a new figure in the realm of IP rights: a person who is simultaneously both content creator and content consumer. During her talk, Mia displayed a Power Point file in-world, most of which is contained in screenshots in this post, and is available for download here.

Mia Wombat: Shall we
start?

...Hopefully, the ideas I throw out there stimulate
some debate and questions and so we can maybe have a more
interactive session once I’ve gone through the slides… we're going to make
a transcript of this, by the way, so if anyone doesn't want to be included in
the transcript please IM me.

Just to set the framework: copyright law is the law
that governs creative expression. It is intended to achieve a balance
between–- sorry, the slides might take a little while to load-- on the one hand,
providing incentives to creators in the form of a grant of monopoly rights to
their creations, and on the other hand, promoting the dissemination of creative
works to the public.

Current debates that rage around the issue of copyright is
about whether that balance is being fairly struck. There is a natural tension that exists between
these two goals. Exclusive control of certain acts such as the right to
copy, the right to adapt, the right to distribute a creative work, and
public benefit from access to creative work.

With the advent of digital technologies that tension
was exacerbated. The very functioning of digital technologies
cause temporary copies of content and software to be made and from
those temporary copies, permanent copies can be made. This implicates copyright’s core right-- the
right to copy. Digital technologies also
allow us to manipulate and share content in unprecedented ways which
implicates copyright’s other exclusive rights.

A virtual world like SL exemplifies this digital tension.

Everything we do here implicates copyright. The text I am typing now, the script that
creates this auditorium, the visual images we see, the snapshots we take. All of these are copyrightable works that can
be saved and manipulated and shared.

Virtual worlds such as SL introduce a new genre
of experience where consumption and production are synonymous, where we as
consumers buy into a piece of entertainment to produce our own
entertainment. This hybrid role of a consumer/producer has been described
as that of a “conducer.”

And so the question arises as to who owns this
creativity of the conducer.

When you think about who contributes what to a virtual world,
there are really two spaces. The first is a topography of space which is a set
of pre-determined constraints created by the original developer. The
original world developer develops the initial code for the world and sets
out the basic parameters for the world.

The second is the possibility space which is the realm in which
we as participants can choose to create and experience a range of
variables. This world gets populated by us, our interactions with each other
and our creativity but all within the series of parameters set by the
initial developer.

This conducer phenomenon is not just limited to
virtual worlds such as Second Life. It is reflective of the greater interactivity which digital technologies
as a whole enable for us all to experience information and entertainment.

It is
in virtual worlds such as SL, however, that this phenomenon is most
apparent.

And it raises foundational questions such as, what is
authorship, and who is entitled to claim copyright’s exclusive rights as
an author and owner of copyright to in world creativity. Does the law recognize
creativity in only the topography space? Or only the possibility space? Or
both?

So you will be pleased and perhaps not surprised to
know that no court in the US has considered this to date.

There have been cases in the mid-1980s that
considered the issue of video games. These cases are not directly
analogous to virtual worlds such as SL. Virtual worlds such as SL allow
greater interactivity. Video game
technology allowed only a more limited level of participant interaction.

Another point of difference is that the cases were brought
between competing video game providers. They did not involve disputes between game developers and users of
those games. So the perspective of the court
was focused differently: who owns copyright as between two different companies,
not who owns copyright as between a developer and participants. But the cases are interesting nonetheless...

In one of the cases, Midway Manufacturing Co. versus
Artic International, Inc., the judge said of gamer participation: “Playing a video game is more like changing
channels on a television than it is like writing a novel or painting a
picture. The player of a video game does not have any control over the
sequence of images that appears on the video game screen. He cannot create any sequence he wants out of
the images stored on the game’s circuit boards. The most he can do is choose
one of a limited number of sequences the game allows him to choose. He is
unlike the writer or the painter because the video game in effect writes the
sentences and paints the painting for him; he merely chooses one of the
sentences stored in its memory, one of the paintings stored in its
collection.”

In another case, Stern Electronics v. Kaufman, the defendant
argued that the plaintiff did not have a copyright in the game because the
images that appeared on the screen during each game play varied with player
interaction, they were not sufficiently fixed or original to
attract copyright protection.

That court dismissed this argument. A CD is a sequence of bits of finite
length. The musician is just choosing one of a finite number of large
numbers for their music (in my humble opinion). It said that that although that while there
were several aspects of a user’s experience of a game that remained
constant during each play of the game, some aspects may not be seen or
heard each time the game is played. But the sights and sounds were stored and capable of being seen, as
thus, were a copyrightable work.

In both cases, it seems as though the courts focused on the
topography of space. And recognized a copyright owned by the original
developers by their act of setting the parameters for the game. Both cases, particularly Midway, did not
recognize participant interaction, in Midway going so far as to say
that players were not real authors or painters.

The courts disregarded the “possibility space”. Obviously, the technology was come a long way
since the early 80s. The level of
interactivity particularly for virtual world such as SL has increased
considerably since these cases were decided.

Pennie Strauss: What
court? It can wait to the end if you
wish.

Mia Wombat: Not a problem. Just checking
the exact citations… [pause] The Midway case was a Seventh Circuit Court of appeals case, which
is for the area around Chicago. The stern case was a Second Circuit case, which
sits around New York City. Both Appeals cases, though, which means kinda important.

Pennie Strauss [grinning]: Aye... thank you.

Mia Wombat: So just
to finish up... A court could hold that
conducer creativity was merely a derivative work based on the topography
space, copyrighted to the original developer and not sufficiently
deserving of its own separate copyright owned by the participant. And many
developers, of course, have structured their Terms of Service to assert that
all rights to in-world items are owned by them. And they have used this to also
assert control in relation to out-of-world references to in-world events.

["B" should read "CC" - ed.]

As we all know, SL has taken a different tack. Second Life’s Terms of Service acknowledge that participants
own the Intellectual Property rights to their creations. This is a great
recognition of the conducer nature of worlds such as SL and the role that
participants play to create and breathe life into such worlds. And, of course, because SL recognizes
participants’ rights to their own creations, this gives rise to the
possibility for each of us to choose to apply Creative Commons licenses to
our in-world creations.

In other online worlds, where the original developer claims
all rights to everything in the world, individual creators and participants
cannot use CC licensing because they have no rights to what they do in
world. But in SL, as copyright owner of
that which you create, you can choose to apply a CC license that suits
your preferences to your creations.

Creative Commons licensing is designed to give
individual creators an easy way to manage their copyright, and assert
“some rights reserved” as opposed to the default “all rights reserved”
level of copyright protection that attaches to a creative work. In an “all
rights reserved” world, you must assume that you cannot do anything
without asking for separate and special permission other than passively receive
content.

In a “some rights reserved” world, you can clearly know and
understand what you can or cannot do with a piece of content. CC licensing
enables the conducer to legally engage with the content they encounter. CC
licensing empowers content creators to clearly signal to conducers that they
welcome their engagement with their creativity. And thanks to Zarf
Vontongerloo, there is a CC license generator in world which lets you choose
from the basic CC licenses by which to manage your copyright if you choose
to.

Rizzermon Sopor: Could I CC license my avatar then?

FromMarkPerrys Hand: “Conducer” - sounds like another made-up word.

Mia Wombat [grinning]: "Conducer" is another made up word. [To Sopor] And if the avatar is your own
creation, then you should be able to CC license it if that matches your
preferences.

Mia Wombat: OK. All
CC licenses require attribution. The
license generator lets you then mix and match between three additional license
conditions.

“NonCommercial”, i.e., “Please feel free to use my work
but don’t make money from it.”

“No Derivatives”, i.e., “Please feel free to use my work
but only in verbatim form, please don’t change it.”

“ShareAlike”, i.e., “Please feel free to make derivatives
but if you do please put them back in the commons, share your derivatives under
the same license terms (this is most
similar to the copyleft condition, for those familiar with open source).”

These license options produce six different licenses. The
least restrictive is the Attribution license which says feel free to copy
my work, distribute it, change, all for commercial and non-commercial
purposes, provided you give attribution. The most restrictive is the
Attribution-NonCommercial, NoDerivatives license, which says “Please feel free
to copy and distribute my work but only in verbatim form, for
noncommercial purposes, and give me attribution.”

Does anyone have any questions or comments?

Rizzermon Sopor: How about CC licensing of everything I say
in-world? That is also possible?

Mia Wombat: Not sure how that would technically work to CC
license your text in the text box, but yes.

Jarod Godel: Which is better for a conducer environment: CC
or public domain?

Mia Wombat: So public domain means no copyright restrictions applies, so if
it's in the public domain it is very conducive to the conducer environment.

Pennie Strauss: But even Public Domain can be limited, can it not?

Mia Wombat: No.

Joi Ito: Having attribution required or not has a big impact
on the nature of the community around a collection of works. You would attract/create different behavior
in either case.

[Some cross-talk due to technical glitches “with hearing”
chat. Questions come up about her usage
and meaning of “conducer”]

Mia Wombat: OK, so I mean it here, in the sense of a merging
of the producer and consumer functions. A conducer obviously causes things to come about in my meaning, but it is more focused on the blurring of traditional boundaries.

Abaga Rutabaga: I love the term, did you coin it?

Mia Wombat: No, I didn't. I can send a reference for the person who
coined the term that I can send you offline. I came across researching for a virtual worlds paper. And similarly
loved it.

Cletus Rothschild: If I am an independent content producer that uses a CC
license and a corporation violates the license, what action can I pursue
assuming that I don't have comparable resources?

Mia Wombat: If you use a CC license and
someone violates it then the license automatically terminates and the big
corporation becomes an infringer, and you have the usual rights at law. In our experience, this is usually enough to
get people to remedy their violation, and we help put people who need
relief in touch with lawyers to assist them if they need it.

Joi Ito excuses
himself to go to the airport

Nic Marx: Often the
best enforcement for open licenses is done by bad press and community protest--
as we see in the free software sphere, license violations rarely get to court.

Mia Wombat: Yeah, and community and bad
press keeps the pressure on.

Cletus Rothschild: Has there ever been a situation where
this has to be pursued in court for extended periods?

Mia Wombat: Yes, there
has been a case in the Netherlands:
A Dutch publisher was held to have violated
the license condition. There hasn't
been a case in the States yet. There has also been a case in Spain,
but it didn't involve whether our licenses were enforceable.

Icky Commons: Mia, can you give an example of places other
than SL where we operate as conducers?

Mia Wombat: So I think that there are many forms in which we operate as
conducers. So much that we find on the Web
we can take and manipulate and repurpose into our own. There are 7 million CC-licensed images on Flickr
that people take and put on their blogs.

Illykai Pussycat: There's an interesting example of acting
as conducers in the roleplaying games hobby. Gamers create their own stories
and characters. Recently, though, White Wolf, a games company, required
that people must pay a fee and register if they charge a fee to run the game.
The justification for this being that the game depends on their
copyrighted material.

Abaga Rutabaga: Mia-- in Second Life, we all go by different
names. Does that have any impact
on our own use of CC?

Mia Wombat: There is no reason to think that a CC license will not be held
up in a US court. I don't think that using a pseudonym
impacts the use of CC. Many people use a
different name online.

Nic Marx: I've heard rumors that Linden Lab was
considering integrating CC licenses directly in the SL client-- is this a
real possibility?

Mia Wombat: When I talked with the people at Linden,
they said they wanted to give people the choice as to whether they used CC
licenses or not. Not to make it a
default, which is kind of what CC is about-- giving people options.

Zenigma Suntzu: I have a proposal to integrate CC into the SL
system... I'd like to at least see a place to specify your intended
license in the "properties" metadata [of objects you create]. See
[this Resident-voted proposition for a new feature.]

Jarod Godel: Are "conducer" and "remix"
synonymous ideas?

Mia Wombat: I think conducer and remix are similar concepts, but the conducer
is the person, remix is what you do to the thing.

ChuckNorris Mission: How much "derivation" can an
object stand until it loses any reasonable semblance to the original object
that held the CC license?

Mia Wombat: If the CC license was not enforceable, then ordinary copyright
rules would presumably apply. As a
lawyer though, you know I love to say that it depends on the facts.

ChuckNorris Mission grins.

Mia Wombat: What constitutes a derivative is an interesting
question that is really not easily answerable. Obviously at some point a derivation is not
based on the original work, but a recent US court held that really small samples required the copyright owner's permission. So maybe even tiny amounts could still be a derivative.

Jarod Godel: Have there been any studies that compare CC and Public Domain's
impact on creativity?

Rizzermon Sopor: CC licensing is not intent on doing away
with copyright , just a license to give up some rights if one chooses,
correct?

Mia Wombat: No studies on CC v. PD - we wish!!! And yes, CC is not about giving up copyright--
it is about licensing some rights to the public if you choose. It's a voluntary system.

Nic Marx: Is using CC music on a parcel in a house in SL, where you also vend
items, a violation of the NC licenses?*

Jarod Godel: Re: music samples-- was that the Grey Album case?

Mia Wombat: No, it was another case. But the Grey case is a great example of
how crazy things can be under the law.

Dexter Aquitaine: Is it appropriate to use CC licensing for
SL scripts?

Mia Wombat: So I probably do not
understand enough about scripts. In general CC licenses are designed for content,
there are software licenses for code. But I'm not sure if people can/want to open source SL scripts. I should probably investigate in more detail.

Dexter Aquitaine: Yep, some have open-sourced scripts.

Nic Marx: Open
question: What will happen to the SL economy if much of the content
available here is freely distributable?

Jarod Godel: Technically speaking, most all content is
freely distributable in Second Life. GLIntercept and OGLE allow you to grab textures and shapes, and
[chat] listeners and logs give you text. So far the economy has held up.

Mia Wombat: CC licensing is fair use plus – i.e., it gives a
layer of permissions on top of fair use. As for the economy and whether CC
can be held up in SL - we are hoping to encourage new business models and
innovative ways of interacting and making money.

Pennie Strauss: Will CC licensing hold up in SL?

Mia Wombat: Yes, copyright will hold up in SL in a more
general sense. It is a question of who
owns it and what people can do with it. Copyright equals original, creative expression in tangible form -
that is, the images and code and text we see and record

Rizzermon Sopor: Mia, any comments about groups saying that
in the digital age copyright is or is becoming a moot point? Maybe
this question is waaay off topic, if so disregard

Mia Wombat [laughs]: So the argument that copyright is dead or about
to die has been going on since the Internet first went commercial but
someone forgot to tell the content owners who continually enforce it in
the courts and get new legislation passed to protect it - including trying
to change how our tech tools are to protect copyright.

Pennie Strauss: Going beyond scripts to images... be it textures for walls or
original art imported to SL. Will a Copyright hold up in SL in a more
traditional sense?

Jarod Godel: The ones who don't use CC?

Endymion Mandelbrot: Perhaps a Creative Commons SL store on
this island would be a good way to spread the CC ideals.

Rizzermon Sopor: Just because Linden Lab "recognizes" content creator
rights in SL, do they even have the legal right to do that, or might that
need tested in court some day?

Mia Wombat: So I think they do have the legal right to do
it. The bigger question is for those providers
who claim all rights in all content, including user-generated content-- do
they have the right to do that? Copyright
does not have to be registered to be enforced.

Jarod Godel: Does Linden Lab's [Terms of Service] clause
"you [then user] automatically grant ... to Linden:
(a) a royalty-free, fully paid-up, perpetual, irrevocable, non-exclusive right
and license to use and reproduce ... any of your Content in any or all
media for marketing" affect ...the
Creative Commons licensing?

Mia Wombat: No, that Terms of Service is a license that can
co-exist with a CC license. The CC license is non-exclusive. So is the Linden license. We are moving to
"disambiguate" our licenses so people can be very specific about
which license they support and which they don't.

Jarod Godel: So, would you recommend all MMOGs support CC? I've
heard that "City of Heroes" retains ownership of characters so they
can use player characters in comics without worrying about copyright.
Since SL seems to have a co-license that allows user ownership and
"provider" marketing access, is there anything besides fear of change
preventing any game from using CC?

Mia Wombat: No, other games could do it-- but they would have to give up some control... which can be painful.

Mia smiles.

FromMarkPerrys Hand (from the audience): Hi everyone, just a quick note to
invite you to an event we're running next week, for World IP Day QUT. They run the Australian Creative Commons
project (I'm visiting). We're going to be holding a discussion: “21st Century
Creativity in a Copyright World: How Can the Potential Be Realized?” We have
some good speakers, including Richard Neville, Toby Miller, Professor
Brian Fitzgerald and self, on 9pm SLT, Tuesday 25 April 2006, at Pooley.

Mia Wombat: Yes, we can all continue these discussions as
the event next week!! We have some CC t-shirts
if people are interested.

During crosschat, a couple questions were inadvertantly left unanswered. I'll be contacting Mia Wombat to get her reply to them in the Comments to this post.

ChuckNorris Mission: If I create a complex piece of content
from several pieces of CC licensed content one of which is
non-commercial, is there any point at which I can use the new object for
commercial reasons?

Nic Marx: Is using CC music on a parcel in a house in SL,
where you also vend items, a violation of the NC licenses?

Adding links:

If you're featured in this transcript and would like your quote to contain relevant links, post the URL in Comments or e-mail them to me (hamlet@secondlife.com).

I'm trying to set a standard for editing chat transcripts cuz it drives me *crazy* when people just post a raw chat history with all the "So and so is online", cross-talk, etc. I don't know anyone can read that.